Case Number: BC491800 Hearing Date: January 17, 2018 Dept: 34

Motion to Compel: (a) Form Interrogatories – General; (b) Form Interrogatories – Employment Law; (c) Special Interrogatories; and (d) Responses to Request for Production

Motion to Deem Admitted Requests for Admission

Moving Party: Plaintiff James Gordon

Resp. Party: Defendant City of Los Angeles

The motion to compel responses to interrogatories and request for production is DENIED as MOOT.

Plaintiff’s motion to deem admitted requests for admission is GRANTED in part and DENIED in part. Defendant is order to provide code-compliant responses to requests for admission 1–3 and 21.

The Court imposes sanctions against defendant in the amount of $3,120.00

BACKGROUND:

Plaintiff commenced this action on 9/10/12 against defendant for retaliation (FEHA).

On 4/7/14, the Court granted defendant’s motion for summary judgment. Judgment was entered on 4/22/14. Plaintiff thereafter appealed.

A remittitur was filed on 4/22/16. The appellate court reversed the Court’s judgment, concluding that triable issues of fact existed with respect to both grounds upon which the Court granted summary judgment.

On 2/8/17, the Court consolidated this action with BC585835. BC585835 was commenced by plaintiff against defendant on 6/23/15 and also asserts a cause of action for retaliation under FEHA.

On 10/26/17, the Court approved a stipulation between the parties to continue the trial until 02/26/18 as well as continue all pretrial deadlines accordingly.

ANALYSIS:

Plaintiff moves to compel defendant to serve responses to Form Interrogatories – General, Form Interrogatories – Employment Law, Special Interrogatories, and to produce all documents responsive to a Request for Production. Plaintiff also moves to deem admitted the Requests for Admission. Plaintiff provides proof of service indicating that the discovery requests at issue were served on defendant on 09/22/17. (Brizzolara Decl., Exh. F.) Plaintiff declares that he granted defendant several extensions to serve responses, but that no responses of any kind had been received by 12/15/17. (Id. at ¶¶ 2–5, Exhs. G–I.)

Relevant Law

California Code of Civil Procedure requires a response from the party to whom interrogatories and requests for production are propounded within 30 days after service of the requests. (Code Civ. Proc., §§ 2030.260(a), 2031.260(a).) If a party fails to serve timely responses, “the party making the demand may move for an order compelling response to the demand.” (Code Civ. Proc. §§ 2030.290(b), 2031.300(b).) By failing to respond, the offending party waives any objection to the demand. (Code Civ. Proc. §§ 2030.290(a), 2031.300(a).)

For a motion to compel, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905 906.) Indeed, “[o]nce [a party] ‘fail[ed] to serve a timely response,’ the trial court had authority to grant [opposing party’s] motion to compel responses.” (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)

California Code of Civil Procedure requires a response from the party to whom the request for admissions is directed within 30 days after service of the request for admissions. (Code Civ. Proc., § 2033.250(a).) If the party fails to serve a timely response, “the party to whom the requests for admission are directed waives any objection to the requests.” (Code Civ. Proc., § 2033.280(a).) The requesting party may then “move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for monetary sanction under Chapter 7.” (Code Civ. Proc., § 2033.280(b).)

A motion to deem admitted requests for admissions lies based upon a showing of failure to respond timely. (Code Civ. Proc., §2033.280(b); Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395 [disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983]; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2016) ¶ 8:1370.) Requests for admissions must be deemed admitted where no responses in substantial compliance were served before the hearing. (Code Civ. Proc., §2033.280(c); Weil & Brown, ¶ 8:1375.)

Discussion

Defendant declares that verified responses to plaintiff’s three sets of interrogatories were served on 12/28/17. (Reznik Decl. ¶ 14, Exhs. L–N.) Defendant further declares that verified responses to plaintiff’s requests for admission were served on 12/22/14. (Id. at ¶ 13, Exh. K.) Each of defendant’s responses is accompanied by proof of service. (See Id., Exhs. K–N.) Additionally, defendant declares that “complaint, verified responses [to plaintiff’s request for production] will be served well before the hearings on Plaintiff’s motions.” (Id. at ¶ 15.)

Plaintiff argues that that defendant’s responses to the Requests for Admission are not in substantial compliance with § 2033.220(c) because defendant’s “failure to timely respond to any of the requests for admissions at issue therefore waived all objections to the requests.” (Reply [RFA] p. 2:21–24.) In addition to asserting objections that had been waived, defendant responded to Requests for Admission 1–3 and 21 by stating that “Defendant does not have sufficient knowledge to admit or deny the request.” (Id. at p. 4:10–13.) However, Code of Civil Procedure section 2033.220(c) provides that in lieu of admitting or denying a request for admission, a party may claim that it is unable to admit or deny but the party must also “state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.”

Plaintiff is correct that defendant’s failure to timely serve responses to the Requests for Admission acts as a waiver of any objections that defendant may assert. (Code Civ. Proc. § 2033.280(a).) However, defendant has already filed a motion for relief from waiver that is set for hearing on February 2, 2018. (Opposition [RFA] p.4:13.) Because the Court has not yet ruled on defendant’s motion the Court declines to rule on plaintiff’s argument at this time. However, plaintiff is correct that defendant’s responses to Requests for Admission 1–3 and 21 do not state that defendant has made a reasonable inquiry concerning the matter. (See Brizzolara Decl., Exh. F, pp. 3:13–27, 4:1–9, 11:9–18.)

Because defendant has served responses to each plaintiff’s interrogatories and request for production, the motion is DENIED as MOOT.

Plaintiff’s motion to deem admitted requests for admission is GRANTED in part and DENIED in part. Defendant is order to provide code-compliant responses to requests for admission 1–3 and 21.

Accordingly, the Court DENIES the motions.

Sanctions

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process . . . pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc. § 2023.030, subd. (a).)

Plaintiff requests that the Court impose sanctions against defendant in the amount of $1,860.00 in connection with each of the two motions. Counsel declares that he spent 1 hour preparing each motion and will spend two hours preparing a reply to motion and attending the hearing. (Brizzolara Decls. ¶ 7.) Additionally, plaintiff has paid $60 to file each motion. (Ibid.) Counsel bills $600 per hour. (Ibid.) Finally, plaintiff seeks an additional $1,200 in sanctions in connection with each of the two motions because counsel “spent approximately two additional hours in preparing this reply . . . that I did not anticipate I would be required to spend when I prepared the motion regarding this matter.” (Brizzolara Decls. [Reply], ¶ 7.)

These requests are excessive. As to the initial sanctions request, it appears that counsel would be compensated twice for attending the same hearing on the instant motions. Additionally, counsel’s claim that the reply briefs took a combined four hours longer than anticipated is not adequately supported. The reply briefs primarily quote directly from statutes and argue that defendant’s responses were inadequate. It is unclear why this response would take so much longer than the response that counsel anticipated writing. As a result, plaintiff may recover fees for a total of 5 hours as well as $120.00 in filing fees.

Accordingly, the Court imposes sanctions against defendant in the total amount of $3,120.00.